Windsor Place v. United States Department of Health & Human ServicesWindsor Place v. United States Department of Health & Human Services
The Windsor Place Nursing & Rehab Center (“Windsor”) petitions this Court for review of the final decision of the Departmental Appeals Board (“DAB”) of the U.S. Department of Health and Human Services (“HHS”) finding that Windsor was in substantial noncompliance with regulations covering skilled nursing facilities, and affirming civil monetary penalties (“CMPs”) and denial of payment for nеw admissions (“DPNA”). Finding that the DAB’s decisions are supported by substantial evidence and are not arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law, we dismiss Windsor’s petition for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Windsor is a skilled nursing facility in Columbus, Mississippi that participates in the federal Medicare and Mеdicaid programs. On behalf of the Centers for Medicare
&
Medicaid Services (“CMS”), the Mississippi State Department of Health conducted surveys of Windsor to determine whether Windsor was in substantial compliance with applicable laws and regulations. Based on a survey conducted on September 24, 2004, CMS determinеd that Windsor was not in substantial compliance with four regulations, three of which are relevant to this appeal: (1)
Based on an October 22 visit, CMS determined that Windsor’s noncompliance with the fourth violation from September 24 (not on appeal) continued at an increased scope and severity. It did not address the three other violations at issue from September 24. Based on an October 28 visit, CMS concluded that while Windsor had remedied its previous violations as of October 27, it was not in compliance with three additional regulations, including one contested in this petition: self-administration of drugs by a resident without a previous determination by Windsor that this practice was safe, in violation of
Windsor appealed all of the violations to an HHS Administrative Law Judge (“ALJ”). The ALJ upheld all of CMS’s determinations of noncompliance with two exceptions. The ALJ reversed the fourth violation from the Seрtember 24 survey and by extension that violation’s continuance in the October 22 survey, and re
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the final decision of HHS regarding Medicare-program compliance pursuant to
III. DISCUSSION
Windsor contests the findings of noncompliance and the CMPs assessed for the three remаining citations stemming from the September 24, 2004 survey and the one remaining citation stemming from the October 28, 2004 survey. It also challenges the imposition of the DPNA on October 27, 2004, arguing that it was in substantial compliance prior to that date.
A. ¿2 C.F.R. § ¿83.20(b)(2)(H)
[w]ithin 14 calendar days after the facility determines, or should have determined, that there has been a significant change in the resident’s physical or mental condition. (For purposes of this section, a “significant change” means a major decline or improvement in the resident’s status that will not normally resolve itself without further intervention by staff or by implementing standard disease-related clinical interventions, that has an impact on more than one area of the resident’s health status, and requires interdisciplinary review or revision of the care plan, or both.)
Id.
CMS found Windsor in noncompliance with
Windsor argues, as it did in the agency proceedings, that CMS failed to make a prima facie case of noncompliance because it failed to produce evidence that the pressure sores had “an impact on more than one area of the resident’s health status” as required for a “significant change” in health status. It contends that the evidence produced shows that the ulcers affected only skin integrity, and that the DAB’s determination that nutritional needs and pain were also imрlicated was merely speculative. We disagree.
As a first matter, the record shows, and the ALJ and DAB found, that Windsor’s staff consulted a dietician on more than one occasion to address the patient’s dietary needs with regard to the pressure sores. One of the progress notes also discusses how different vitamin аnd dietary supplements were meeting her protein and fluid needs but not her caloric needs. While these dietary consultations may have related to remedying the skin-integrity problems rather than addressing separate dietary concerns, this evidence is sufficient to support a finding that the pressure sores implicаted the patient’s dietary needs.
Windsor nonetheless contends that the sores could not have affected the patient’s nutritional status absent evidence of substantial weight gain or loss. Windsor is correct that the preamble to the rulemaking for this section notes ten areas of decline that
may
be charaсterized as “significant changes,” including “unplanned weight loss problem.”
See
62 Fed.Reg. 67,174, 67,196-97 (Dec. 23, 1997). The DAB correctly notes, however, that the preamble list is not intended to be exclusive. Additionally, while
Additionally, the DAB and ALJ’s findings concerning pain are also supported by substantial evidence. Given the description of the patient’s ulcers, which included tunneling of six centimeters deep, it is hard to believe that the patient was not alsо in severe pain. The ALJ and DAB’s decision not to credit nurses notes observing no distress during the relevant time period was also not erroneous, as the patient’s ability to communicate and be understood was limited, and the patient’s daughter later expressed concern about her mother’s pain. Therefore, wе find that the DAB’s determination was supported by substantial evidence and was not arbitrary and capricious.
B. 4% C.F.R.
The DAB affirmed the ALJ’s findings that in January and February of 2004, prior to the development of the ulcers in February and March, Windsor failed to follow its own care-plan measures desрite its knowledge of the patient’s high risk. Windsor challenges the DAB’s determination on the grounds that it took appropri
While it is true that the services listed above were in the patient’s care plans as early as her admission in 2002, this fails to rebut the ALJ and DAB’s central finding: that Windsor fаiled to follow its own plan of preventative care in the months immediately preceding the development of the pressure sores. While the provision of these services would have constituted routine preventative care and rendered the pressures sores unavoidable, Windsor fails to show that it continued to provide all of the named services in January and February of 2004. Citing to care plans from previous years does not contradict the ALJ and DAB’s findings. We find no error in the DAB’s holding.
C. Jp2 C.F.R. § m.25(a)(8)
Windsor raises two challenges to the findings of noncompliance. First, it argues that it presented evidence to show that the call bells actually were accessible to each resident. But we find that the DAB correctly ruled that Windsor had presented no evidence that rebuts the findings of inaccessibility. Its argument that the first resident could have used her non-paralyzed arm to reach for the bell is speculative and is not supported by the resident’s own assertion of inaccessibility. As to the second and third residents, it cited no record evidence that an additional call bell was actually accessible or that the resident positioned near the door wаs near enough to a nurses’s station that his calls would have been heard.
Second, Windsor argues that regardless of the call bells’ accessibility, none of the residents were in need of care at the time the violations were found and therefore suffered no negative outcomes. Specifically, it contends that two of the residents “were up wandering around at the time” and another was sitting in the hallway “positioned to yell at those who passed by him.” We agree with the DAB that a
D. m C.F.R. § k8S.10(n)
On appeal, Windsоr challenges only the DAB’s determination of the date of substantial compliance, arguing that it had instituted all of the measures in its plan by December 8, the date of its submission. We agree with the DAB that Windsor has failed to present evidence of its compliance before December 21. Windsor’s mere assertions that it had instituted all of the measures prior to the revisit fails to rebut the finding that compliance could not be verified until the December 22 revisit. Therefore, the DAB’s decision was supported by substantial evidence and was not erroneous.
E. Imposition of the DPNA
As an additional matter, Windsor claims that CMS erred in imposing the DPNA, because the October 22 inspection was a revisit survey that established only one continuing violation, which was later overturned. Therefore, Windsor claims, CMS implicitly found Windsor in compliance with the three other September 24 violations as of the October 22 inspection.
The DAB found, however, that the October 22 survey did not concern the remaining three violations stemming from the September 24 survey. It noted that it would be unlikely for CMS to increase the CMP to $550 if Windsor had corrected three of the four violations. Additionally, CMS found that Windsor had remedied the September 24 violations only based on the October 28 survey. The DAB also noted that Windsor’s own compliance plan had an October 25 completion date. Based on this evidence, Windsor’s claim does not hold water. We find that the DAB’s determination was supported by substantial evidence, and based on the date of substantial compliance, that CMS did not improperly impose the DPNA.
IV. CONCLUSION
For the foregoing reasons, we find the DAB’s determination are supported by substantial evidence in the record and are not arbitrary and capricious or an abuse of discretion. We therefore dismiss Windsor’s petition for review.
PETITION DISMISSED.